ORIENTAL INSURANCE COMPANY Vs. JAGDISH KUMAR

JUDGEMENT

(1.) The Award impugned before this Court is the Award dated 2.12.2009 vide which a total compensation in the sum of Rs. 8,37,236 along with interest @ 7.5% per annum had been granted in favour of the claimant/petitioner. The claimant was the injured himself; he had suffered an accident on 8.5.2007 near Balaji Hospital, Paschim Vihar, when he was getting ready to board a bus; the bus had run over his left foot; because of this injury, his left foot had to be amputated; he had suffered permanent disability of 60%.

(2.) Record shows that the petitioner was doing the job of a helper in a DTC bus; on the fateful day, the petitioner was getting the bus reversed when all of a sudden the driver turned the bus without seeing the indication given by the petitioner and as a result, the bus ran over the left foot of the petitioner; he was taken to the Balaji Hospital where his foot had to be amputated. FIR under Section 279/338 of the Indian Penal Code had been registered against the driver. Oral and documentary evidence was led pursuant to which the aforenoted amount had been awarded in favour of the petitioner.

(3.) The grievance of the Insurance Company is on three counts; contention is that the future prospectus have been considered on the minimum wages of the petitioner when in view of the judgment of the , Sarla Verma & Others v. Delhi Transport Corporation and Another, 2009 6 Scale 129 future prospects should not have been considered. The awarded amount of Rs. 4,12,236 under the head of "loss of earning capacity" is thus liable to be set aside. The second grievance is that the amount awarded under the head of non-pecuniary damages i.e. under the claim listed at serial Nos. 6, 7, 8 and 9 are also on the higher side; these amounts total a sum of Rs. 3.5 lacs; there was no evidence of future expenses for the change of artificial limb and the sum of Rs. 1 lac granted on this count also suffers from an infirmity. This amount also being on the higher side is liable to be set aside. The last grievance of the petitioner is that the driving licence of the driver had expired and this has been noted by the Tribunal in para 47; attention has been drawn to this finding whether the Tribunal had noted that the driving licence of the driver had expired on 14.1.2007 and as such on the date of accident which was on 8.5.2007, the respondent did not have any valid or effective driving licence. Submission is that in view of judgment of the Apex Court reported in , National Insurance Company. Ltd. v. Vidhyadhar Mahariwala & Others, 2008 4 ACC 714 the Insurance Company is not liable in any manner; although admittedly recovery rights had been granted in favour of the Insurance Company yet the contention of the appellant is that no liability could have been foisted upon the Insurance Company in any manner.